Invasion of Privacy

These notes were prepared in June 2009. They are intended as general information not specific legal advice. If you want legal advice about a particular problem, you can contact me here.

What’s the basic rule?

It’s an infringement of privacy to publish private facts about someone who has a reasonable expectation of privacy in them, and where the disclosure is highly offensive to a reasonable person in the shoes of the plaintiff. There are defences of public interest and consent.

What are the remedies for a breach?

Damages or an injunction.

Does a person have to be identified to complain about infringement of privacy?

Yes, though a story might identify a person even if he or she isn’t named, for example by showing them wearing some distinctive clothing even if their face is pixelated. The key issue: was the person recognisable to those who know him or her, but don’t know the private fact?

So what are “private facts”?

These are facts that aren’t known to the world at large, and the person can expect they won’t be made public. They may be known to some people. Private facts are usually sensitive in some way (health, sexual or financial information, for example). A fact is more likely to be private if a person has sought to avoid exposure. A fact that is public can become private again with the passage of time. For example, a criminal conviction may become a private fact again, depending on how serious and well-known it was. As a very rough rule of thumb: a moderately serious criminal offence is likely to take at least six to eight years to become private again. Very serious offending will probably never become private again.

Do public figures have rights of privacy?

Public figures have lower expectations of privacy, especially if they are exercising public power. Their families and business associates also have correspondingly lower expectations. Still, celebrities who take steps to shield parts of their lives from the public gaze may have higher expectations of privacy (for example, John Campbell and his family). Celebrities’ children are still likely to receive a high degree of protection.

Can people have privacy rights in public places?

It will be rare for things occurring in public to give rise to privacy rights. It may be crossing the line, for example, to publish:

moments of distress or anguish, such as pictures of a distraught man carrying a knife after he attempted suicide;

traumatic or humiliating footage at an accident or crime scene;

an intimate conversation;

images containing nudity or near-nudity, especially if the person is caught unawares;

moments of humiliation, especially if the person is particularly vulnerable.

Restrained coverage of victims and police or rescue workers at an accident or crime scene is unlikely to breach privacy rights.

Do corporations have privacy rights?

It is unlikely that corporations will be found to have privacy rights. But in some circumstances they may be able to sue for breach of confidence.

How can you tell if publicity is “highly offensive”?

The publicity must be widespread and the facts very personal and private. To attract a lawsuit, the coverage has to be “truly humiliating and distressful or otherwise harmful to the individual concerned”. That doesn’t mean the person needs to provide
medical evidence of harm, or suffer financial loss. But it does mean that the hurt must be significant – fanciful injury or low-level embarrassment won’t be enough. For example, a court found that intimate conversations between a distraught couple at the scene of their car accident were private facts, but the inclusion of this footage in a reality TV show was not truly humiliating to them because they were portrayed fairly sympathetically.

If the publicity puts someone in danger, that’s likely to make it highly offensive.

How can you tell whether the defence of public interest applies?

As always, “public interest” doesn’t include everything that might be interesting to a
curious public, just those things of legitimate public concern. Much will depend on whether the media can spell out a convincing public interest justification. It is difficult to define precisely. It is likely to apply to information about threats to public safety or welfare, crime or corruption, exposing lies or deception, or serious maladministration of a government or powerful private agency.

The courts look for proportionality: the greater the harm that’s done by the invasive story, the greater needs to be its genuine usefulness in telling the public something important to their lives. Judges may ask what other steps the media took to verify the information they are claiming is in the public interest. For example, a story containing splashy pictures and accusing a diplomat of having an affair with a spy from another country will only provide a good public interest defence if there is good evidence that the person is indeed a spy and not, for example, a prostitute.

There will seldom be public interest in titillating details about celebrities, unless they reveal some fairly serious hypocrisy. When supermodel Naomi Campbell claimed she didn’t take drugs, the public were entitled to know that she had been lying.
But this cannot be taken too far. Celebrities who say “fine” when asked how their marriages are, do not open themselves to lurid accounts of their marital difficulties in order to expose the hypocrisy. On the other hand, celebrities who make fidelity a centrepiece of their public images may well be fair game for such a story.

Similarly, it usually won’t be enough to argue that celebrities are “role models”, and therefore deserve to have their private foibles exposed, unless they have done something truly serious or deceptive.

What is the role of consent in a privacy claim?

Consent is a defence to invasion of privacy. But there may be tricky issues here. What if parents give consent for the use of embarrassing footage or information about their child – for example, to show how unruly the child is in order to justify their violent discipline? There may be circumstances where such publicity may be highly offensive despite parental consent. Consent given by those with mental health issues, or language difficulties, etc, may also raise difficult questions.

What if someone offensively intrudes into my private domain, but doesn’t necessarily find out and publish any private facts?

Unlike the Broadcasting Standards Authority, the courts have stopped short of developing a strand of privacy law protecting against unreasonable or offensive intrusion into someone’s solitude or seclusion. But they have not ruled out such a development. So any use of long-lens photography or audio or video surveillance that may be offensive to reasonable people is risky. Of course, if such techniques uncover private facts that are then published, the other strand of privacy law discussed above applies.